A lawyer’s tricks

[Sent to the Cambodia Daily on 19 October. Not published.]

James Goldston’s “Justice Delayed and Denied” (International Herald Tribune, October 13; Cambodia Daily, October 15-16) employs a legal adversarial style of argument: one’s client is always the epitome of innocence, while the opponent is the exact opposite. This style has its place in trials within the common law legal system, but it is far less reliable in public political discussion, where there is no impartial judge to warn that an argument may be irrelevant, distorted or false.

In discussing Judge Blunk’s resignation from the Extraordinary Chambers in the Courts of Cambodia, Goldston appears as lawyer for the plaintiff, which happens to be the organisation he heads, the Open Society Justice Initiative. OSJI seeks to cast the Cambodian government as the defendant.

Goldston’s special pleading appears in nearly every sentence. When he lacks evidence, he substitutes an unfounded generality: “to general astonishment”, the UN Secretary-General didn’t do what Goldston thought he should; “by all accounts”, the ECCC has not stemmed “corruption” (which neither Goldston nor OSJI have ever documented: see below).

Goldston distorts even well-known history. For example, “the Khmer Rouge left Phnom Penh in 1979”. It sounds as though the KR grew tired of ruling and decided to retire. The reason for this distortion is that Prime Minister Hun Sen and many other members of the current government risked their lives to participate in driving the KR from power, and mentioning that would undermine Goldston’s effort to portray government leaders as unscrupulous defenders of KR criminals.

Another example: “When, in the 1990s, Prime Minister Hun Sen balked at a court with a majority of international judges, the United Nations gave in”. The uninformed reader is left with the idea that the UN was setting up a court with a majority of international judges, but Hun Sen intervened and changed everything. In fact, the court was initiated by the Cambodian government, which sought UN assistance. The UN’s initial response was to propose a completely international trial, outside Cambodia, involving Cambodians only as defendants and witnesses. The government deserves credit, not blame, for insisting on trial arrangements that respect Cambodian sovereignty.

Even where Judge Blunk seems to provide Goldston ammunition, the latter cannot resist distorting it. Thus he quotes Judge Blunk as referring to “repeated demands by senior Cambodian officials to end all ongoing investigations”. In fact, Judge Blunk’s press release on his resignation said nothing at all about demands to end investigations, but only quoted government comments on whether trials ought to proceed.

Goldston goes on to claim that Judge Blunk said these supposed demands “call in doubt the integrity of the whole [ECCC] proceedings”. What Judge Blunk really said was that his ability to act independently “could” be called into doubt, and this in turn “would” call into doubt the proceedings. What Judge Blunk described as a possibility, Goldston converted into an already accomplished fact.

Written as a complaint that the UN is not doing enough to rein in the Cambodian government, Goldston’s piece avoids the need to document his charges against the government. For example: UN officials claimed, “wrongly, that ‘judicial independence’ precluded them from addressing … judicial misconduct”. In form, this is an argument about judicial independence and the powers of UN officials; its real function is to leave the reader with the impression that “judicial misconduct” had been demonstrated — when it hadn’t.

In the same vein, but even more deceptive: “When reports emerged that Cambodian court staff had to kick back part of their salaries to political sponsors, the U.N. resisted a full-blown inquiry …”. These “reports” did not “emerge”, like water bubbling up from an artesian well. They were produced by OSJI, a little detail that Goldston, like a wise lawyer, neglects to share with the reader. No one was ever able to conduct a proper inquiry because OSJI steadfastly refused to give the court or the government any specifics of its “reports”: no names, no dates, no details, nothing except an extremely destructive accusation too general to be dealt with. It was like a demand addressed to the entire Cambodian side of the court: prove that you’re not corrupt.

Judge Blunk’s resignation statement, despite not saying things Goldston claims it said, deserves to be taken with a very large pinch of salt. There has been far more pressure exerted by NGOs like OSJI than by the Cambodian government in regard to Cases 003 and 004. This pressure goes back at least to January 2009, when David Scheffer, the former US ambassador at large, wrote publicly that a decision not to proceed with the cases could be due only to “political intrigue or corruption” (Phnom Penh Post, January 9, 2009). Scheffer even went on to suggest monetary inducements to the Pre-Trial Chamber, which was considering those cases, saying that its decision would be “the key that unlocks the international money” for “long-term financial support of the ECCC”. Neither OSJI nor any other NGO critic ever said a word about this scandalous argument.

Since at least that time, there has been escalating outside pressure on the co-investigating judges to charge the suspects in the two cases. Goldston does not mention that pressure because OSJI is one of its major sources. Why does Judge Blunk not mention it? Certain logical reasons suggest themselves.

In any country, a judge may feel pressure from the government if that government has power over the judge’s future career. This is not the situation of Judge Blunk or any other international judge of the ECCC. When they complete their terms, they will return to their own countries’ courts or to international courts over which the Cambodian government has no influence. However, some of those courts will be controlled by governments that are influenced by or collaborate with organisations such as OSJI or Human Rights Watch, which was recently clamouring for Judge Blunk’s resignation. If you were a judge in that situation, and wanted to continue a judicial career, whose pressure would feel more intense?